On behalf of the defendant-appellant, the cause was
submitted on the briefs of Donna L. Hintze, assistant state public defender of Madison.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent, the cause was
submitted on the brief of Mark A. Neuser, assistant attorney general, and J.B. Van Hollen, attorney
general.

2011 WI App 131

COURT OF APPEALS

DECISION

DATED AND FILED

August 31, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2010AP2003-CR

Cir. Ct.
No.2007CF1499

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Courtney C. Beamon,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for RacineCounty:Emily
S. Mueller, Judge.Affirmed.

Before
Brown, C.J., Neubauer, P.J., and Reilly, J.

¶1NEUBAUER, P.J.Courtney C. Beamon appeals his conviction for fleeing or eluding an
officer, contrary to Wis. Stat. § 346.04(3)
(2009-10),[1]
as a habitual criminal.Beamon contends
that there was insufficient evidence to prove beyond a reasonable doubt that he
was guilty of fleeing or attempting to elude an officer based on the
instructions provided to the jury.It is
undisputed that the instructions erroneously required an additional finding of
fact not essential to the offense.Thus,
the issue on appeal is whether this legally inaccurate instruction becomes the
law of the case for purposes of evaluating sufficiency of the evidence.We conclude that it does not.When a jury convicts based on a patently
erroneous jury instruction that varies from the statutory crime by adding an
unnecessary factual finding, the error is subject to harmless error review.Due process requires proof beyond a
reasonable doubt of every fact necessary to constitute the crime charged.We conclude that, under the totality of the
credible evidence, it is clear beyond a reasonable doubt that a rational jury
would have found Beamon guilty of the offense charged absent the error.We affirm the judgment.

BACKGROUND

¶2Beamon was charged with fleeing or eluding an officer as the
result of an incident occurring on November 19, 2007, the underlying facts of
which are uncontested.At approximately
12:45 a.m., Officer Frank Miller of the City of Racine Police Department
responded to information from dispatch that gunshots had been fired in the 1300
block of Douglas Avenue.Miller was patrolling that area in a marked
city of Racine squad car.He then
received additional information that there was a vehicle, “like an Intrepid,”
traveling northbound with its lights off.When Miller approached the intersection of Albert and Douglas, he
observed a vehicle matching the description driving northbound with “its lights
extinguished.”He estimated that the
vehicle was traveling forty-five to fifty miles per hour in a thirty-mile per
hour zone.Miller activated his
emergency lights and siren and pulled out to follow the vehicle.Miller testified that he was no more than
three-quarters of a block behind the suspect vehicle.The vehicle did not slow or yield at all in
response to his presence, but did slow down to negotiate a turn onto LaSalle
Street.When the vehicle approached the
controlled intersection of LaSalle
Street and St. Patrick Street, it did not stop or
slow for the four-way stop sign.After
proceeding through the intersection, the driver opened the door and rolled out
of the vehicle.The abandoned vehicle
then continued northbound until it struck a legally parked vehicle.Miller remained in his squad and followed the
suspect who was now on foot.

¶3The incidents of that evening and what transpired during the
foot chase resulted in the charging of eight counts against Beamon.The matter proceeded to a jury trial at which
Beamon was found guilty of all eight counts.Beamon now appeals, challenging only his conviction for fleeing or
eluding an officer.

No operator of a vehicle, after having received a
visual or audible signal from a traffic officer, or marked police vehicle,
shall knowingly flee or attempt to elude any traffic officer by willful or
wanton disregard of such signal so as to interfere with or endanger the
operation of the police vehicle, or the traffic officer or other vehicles or
pedestrians, nor shall the operator increase the speed of the operator’s
vehicle or extinguish the lights of the vehicle in an attempt to elude or flee.

Sec. 346.04(3).In State v. Sterzinger, 2002 WI App
171, ¶9, 256 Wis. 2d 925, 649 N.W.2d 677, this court separated the language of
§ 346.04(3) into segments:(1) No
operator of a vehicle, after having received a visual or audible signal from a
traffic officer, or marked police vehicle, (2) shall knowingly flee or attempt
to elude any traffic officer.This
second segment “encompasses a knowing act (fleeing or attempting to elude the
officer), which results in criminal liability if it is accompanied by one of
three additional facts.”Sterzinger,
256 Wis. 2d 925, ¶9.Thus
the State can prove the second element—that the person knowingly fled or
attempted to elude an officer—in one of three ways:by willful or wanton disregard of such signal
so as to interfere with or endanger the operation of the police vehicle, or the
traffic officer or other vehicles or pedestrians, or by increasing speed or by
extinguishing the vehicle’s lights in an attempt to elude or flee.Sterzinger, 256 Wis. 2d 925, ¶9
& n.3.

¶5The State charged and prosecuted Beamon based on the theory
of willful or wanton disregard of an officer’s signal so as to interfere with
or endanger other persons or vehicles.However, the instruction provided to the jury in this case misstated the
law by requiring the jury to find both that Beamon acted with willful and
wanton disregard and that he did so
by increasing the speed of his vehicle.Thus, the instruction required the finding of two distinct facts when
only one was necessary to establish a knowing act of eluding or fleeing.The court instructed the jury:

Section
346.04(3) of the Wisconsin Statutes is violated by a person who operates a
motor vehicle on a highway after receiving a visual or audible signal from a
marked police vehicle and knowingly flees
any traffic officer by willful disregard of such signal so as to interfere with
or endanger the traffic officer by increasing the speed of the vehicle to flee.Before you may find the defendant guilty of
this offense, the State must prove by evidence which satisfies you beyond a
reasonable doubt that the following two elements were present.

First, the
defendant operated a motor vehicle on a highway after receiving a visual and
audible signal from a marked police vehicle.

Secondly,
the defendant knowingly fled a marked squad car by willful disregard of the
visual or audible signal so as to interfere with or endanger the traffic
officer by increasing the speed of the
vehicle to flee.

(Emphases added.)Beamon appeals his conviction because
“[u]nder the jury instruction given, there is no credible evidence to support
the verdict.”Specifically, there was no
evidence at trial that Beamon increased the speed of the vehicle to flee.

¶6The State concedes that the evidence at trial did not satisfy
the erroneous jury instruction.Thus, it
defines the issue as:“How should
sufficiency of the evidence be measured—by the elements of the offense as
defined by an unobjected-to, but erroneous jury instruction, or by the elements
as defined by what would have been the correct jury instruction?”Beamon, however, contends that the
instructions given provide the law of the case and govern our review of the
sufficiency of evidence.Beamon cites to
D.L.
Anderson’s Lakeside Leisure Co. v. Anderson, 2008 WI 126, ¶22, 314 Wis.
2d 560, 757 N.W.2d 803, for the proposition that “[a] challenge to the
sufficiency of the evidence is evaluated in light of the jury
instructions.”Beamon’s reliance on Anderson
is misplaced.While Anderson involved a
challenge to the sufficiency of evidence, id., ¶3, it did not involve a
challenge to the jury instruction as being incorrect nor did it involve a
statutorily defined offense in a criminal matter.

¶7Instead we look to State v. Harvey, 2002 WI 93, 254
Wis. 2d 442, 647 N.W.2d 189, for guidance.There, the court held that an improper jury instruction which results in
constitutional error is subject to the application of the harmless error
rule.Id., ¶35 (citing Neder
v. United States, 527 U.S. 1, 4 (1999)); see alsoState v. Jorgensen, 2008 WI 60, ¶23,
310 Wis. 2d 138, 754 N.W.2d 77 (applying a harmless error analysis to an
unobjected-to error).This rule provides
that “[a] constitutional or other error is harmless if it is ‘clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty
absent the error.’” Harvey, 254 Wis. 2d 442, ¶49 (citing Neder, 527 U.S. at
18).Thus, a defendant’s conviction
should stand where a reviewing court concludes beyond a reasonable doubt that
the required elements of the offense are supported by overwhelming evidence and
“no rational juror, if properly instructed” could find otherwise.SeeUnited
States v. Inman, 558 F.3d 742, 749 (8th Cir. 2009) (citing Neder,
527 U.S. at 17; Pope v. Illinois, 481 U.S. 497, 503 (1987)).A harmless error determination presents a
question of law we review independently. State v. Ziebart, 2003 WI App 258,
¶26, 268 Wis. 2d 468, 673 N.W.2d 369. In
determining whether an error is harmless, we weigh the effect of the trial
court’s error against the totality of the credible evidence supporting the
verdict. Id.

¶8We are mindful that these cases involved omissions in the
jury instructions whereas here the error involved the addition of a factual
finding which heightened, not lowered, the burden on the State.Thus this case presents a different
issue—whether a conviction may be upheld if the evidence is insufficient to
support a factual finding charged to the jury when the jury instruction
erroneously deviated from the elements as defined by statute, charged in the
information, and prosecuted by the State.We conclude that it can.While we
acknowledge that there is no Wisconsin case law directly on point, we look to
the above-cited Wisconsin criminal cases involving erroneous jury instructions
as well as the persuasive authority set forth in federal cases involving the
erroneous addition of an element not necessary to the charged offense.

¶9As noted in Inman, our inquiry is appropriately
guided by the justification for sufficiency-of-the-evidence review generally.SeeInman,
558 F.3d at 748. In Jackson v. Virginia, 443
U.S. 307, 319 (1979), the Supreme Court explained that such review is
undertaken “to guarantee the fundamental protection of due process of
law.”That protection requires that a
defendant’s guilt be established by “proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he [or she] is charged.”In re Winship, 397 U.S. 358, 364
(1970).As the Inman court observed:

A defendant has no due process right, however, to proof
beyond a reasonable doubt of elements not
necessary to constitute the crime charged, including
elements erroneously or unnecessarily charged to the jury. If, for example, a jury is charged that it
must find three statutory elements and a fourth element not required by
applicable law, that the evidence is insufficient to prove the fourth
non-statutory element does not mean that a conviction that is properly
supported under the applicable law deprives the defendant of his right to due
process.

Inman, 558 F.3d at 748
(second emphasis added); see alsoid.
at 749 (citing United States v. Guevara, 408 F.3d 252, 258 (5th Cir. 2005) and
United
States v. Zanghi, 189 F.3d 71, 77, 79 (1st Cir. 1999) (both holding
that the law of the case does not apply when a jury convicts based upon a
patently erroneous jury instruction that varies from the charge as correctly
set forth in the indictment by adding an unnecessary element, and the
government’s prosecution of the case is based on the correct charge)).Consistent with the due process analysis
employed by these courts, we conclude that the evidence is to be measured by
the applicable law, not as set forth in the erroneous jury instructions which
required an additional finding of fact not essential to the offense.[2]This ensures that a reversal for error is
reserved for those situations in which there is an actual failure in the
State’s proof of the crime rather than a mere error in the instruction.See Harvey, 254 Wis. 2d 442, ¶46
(citing Neder, 527 U.S. at 18 (“Reversal for error, regardless of its
effect on the judgment, encourages litigants to abuse the judicial process and
bestirs the public to ridicule it.”)).

¶10Here, the elements of the offense were properly set forth in
the information and were properly read to the jury prior to the erroneous
instruction.[3]Further, the State’s defense of the verdict
on appeal is consistent with the theory of prosecution presented in the
information and at trial, despite the erroneous jury instruction.[4]In keeping with the applicable law set forth
in the information, the jury should have been instructed as follows under Wis JI—Criminal 2630:

Before you may find the defendant guilty of this
offense, the State must prove by evidence which satisfies you beyond a
reasonable doubt that the following two elements were present.

1.The
defendant operated a motor vehicle on a highway after receiving a visual or
audible signal from a marked police vehicle.

2.The
defendant knowingly fled or attempted to elude a traffic officer by willful
disregard of the visual or audible signal so as to interfere with or endanger the
operation of the police vehicle, the traffic officer, other vehicles, or pedestrians.

And, as clarified in Sterzinger,
the State need not prove that the defendant actually interfered with or endangered
the operation of the police vehicle, traffic officer, other vehicles or
pedestrians, but only that the defendant’s actions were likely to produce that result.See Sterzinger, 256 Wis. 2d 925, ¶21.

¶11Turning to the evidence presented at Beamon’s trial, it is clear
beyond a reasonable doubt that a rational jury would have found him guilty
absent the error.SeeHarvey, 254 Wis. 2d 442, ¶49 (citing Neder, 527 U.S. at 18).Miller testified that he was in a marked
police vehicle when he followed Beamon with both his emergency lights and siren
activated.While being pursued, Beamon
drove forty-five to fifty miles per hour in a thirty-mile per hour zone, at
night, with his lights extinguished.He
proceeded through a four-way stop sign without yielding or stopping, and then
rolled out of the car at twenty-five miles per hour, leaving the abandoned
vehicle to crash into a parked car.Based on this uncontested and overwhelming evidence, any rational trier
of fact would have found beyond a reasonable doubt that Beamon operated a
vehicle on a highway after receiving both visual and audible signals from a
marked police vehicle and willfully disregarded that signal so as to interfere
with or endanger the pursuing officer.

CONCLUSION

¶12We conclude that the evidence is measured against the actual
elements of the charged offense, and not the incorrect jury instruction which
required an unnecessary factual finding.Because there was overwhelming evidence to support the jury’s verdict of
guilt as to eluding or fleeing an officer, it is clear beyond a reasonable
doubt that a rational jury would have found Beamon guilty absent the erroneous
jury instruction.The error, therefore,
could not have contributed to the verdict.Because the error was harmless, we affirm the judgment of conviction.

By the Court.—Judgment affirmed.

[1] All
references to the Wisconsin Statutes are to the 2009-10 version unless
otherwise noted.

[2] Beamon
cites to the supreme court’s decision in State v. Wulff, 207 Wis. 2d 143,
153, 557 N.W.2d 813 (1997), for the proposition that a court may only affirm a
conviction “if there was sufficient evidence to support guilt on the charge
submitted to the jury.”In Wulff,
the prosecution advanced a theory of the crime on which the jury was never
instructed. Id. at 154 (“because
facts regarding the attempted fellatio were submitted to the jury without
instructions as to the relevant law, this court directs the entry of a judgment
of acquittal”).

Here, there was one theory advanced by the
prosecution—that Beamon did not stop, yield or slow when Miller was pursuing
him, but instead “blasted right through” a four-way stop sign, “bailed out of
the car at 25 miles an hour” and “got up to run away”—and that theory satisfied
the actual elements of the charged offense.As the State points out, unlike Wulff, where the jury was not
instructed as to the charged offense, the jury here was instructed as to the
offense, but was required to make an additional and unnecessary factual finding.Moreover, case law subsequent to Wulff
makes clear that Wisconsin employs a harmless error analysis to erroneous jury
instructions.SeeState v. Gordon, 2003 WI 69, ¶40, 262 Wis. 2d 380, 663 N.W.2d
765; State
v. Harvey, 2002 WI 93, ¶¶46-47, 254 Wis. 2d 442, 647 N.W.2d 189
(embracing the federal harmless error rule employed in Nederv. United
States, 527 U.S. 1 (1999)).

[3] In
addressing the jury prior to deliberations, the court explained that, as to
each count, it would read the charging section of the information and then read
the instruction that “advises … of the elements of each offense that the State
is going to have to prove.”Thus, prior
to instructing the jury as to the elements of attempting to flee or elude an
officer, which was Count 1 of the information, the trial court stated:

Mr.
Beamon is charged with eight counts in the charging document, the
information.Count 1 is vehicle operator
fleeing or attempting to elude an officer.It charges that on or about 11/19 of 2007, in the County of Racine,
State of Wisconsin, the defendant did unlawfully, as the operator of a vehicle,
having received a visual or audible signal from a traffic officer or marked
police vehicle, knowingly flee or attempt to elude any officer—any traffic
officer by willful or wanton disregard of such signal so as to interfere with
or endanger the operation of the police vehicle or the officer or other
vehicles or pedestrians, or did increase the speed of the vehicle or extinguish
the lights of the vehicle in an attempt to elude or flee.

[4] For
these reasons, and given the overwhelming evidence, we are also satisfied that
the erroneous instruction did not confuse or mislead the jury as to the
essential elements of the charged crime.